[2020] KEHC 8801 (KLR)
The court held that it lacks jurisdiction to review or alter a sentence imposed by a judge of equal jurisdiction, as such power is reserved for the Court of Appeal. The court further noted that the period spent in custody prior to sentencing was already considered by the sentencing judge, as evidenced by the...
Source-derived case information.
- Citation
- [2020] KEHC 8801 (KLR)
- Parties
- Applicant: Yasin Hamisi Bawala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 36 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Sentence Review, Custodial Period Credit, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yasin Hamisi Bawala
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the High Court can review its own sentence under section 333(2) of the Criminal Procedure Code after conviction and sentencing by a judge of equal jurisdiction.
- 2 Whether the period spent in custody prior to sentencing was considered in the original sentence.
Ratio Decidendi
The court held that it lacks jurisdiction to review or alter a sentence imposed by a judge of equal jurisdiction, as such power is reserved for the Court of Appeal. The court further noted that the period spent in custody prior to sentencing was already considered by the sentencing judge, as evidenced by the mitigation submissions and the sentence imposed. Therefore, the application for review under section 333(2) of the Criminal Procedure Code was without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 36 OF 2019
YASIN HAMISI BAWALA............................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
RULING
1. By application forwarded by Prisons Authorities on 2/4/2019 the applicant seeks review of sentence meted to him under section 333(2) of the Criminal Procedure Code and in the review exercised the court to take to account period spent in custody before sentence.
2. The applicant was charged with murder contrary to section 203 as read with section 204 of the Penal Code. He pleaded not guilty and matter was heard in full and he was found guilty, convicted of manslaughter and sentenced to serve 8 years’ imprisonment.
3. The applicant did not appeal to the higher court. He now moves this court via section 333(2) of the Criminal Procedure Code.
4. In mitigation on 11/2/2018 his advocate Mr. Onono stated that he had been in custody for 5 years and urged court to consider the same period.
5. Thus when the court was awarding the applicant 8 years’ imprisonment sentence was alive to the fact that the applicant had been in custody for 5 years.
6. The applicant had option to appeal against the sentence awarded by the judge.
7. Only the Court of Appeal can change an award in sentence made by a High Court judge. Thus court cannot apply the provisions of section 333(2) of the Criminal Procedure Code to overturn a decision of a judge of equal jurisdiction.
8. Thus application has no merit and is hereby dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 5TH DAY OF FEBRUARY, 2020.
.......................
C. KARIUKI
JUDGE